¶1I am of opinion that the first motion was properly denied. It would be anomalous for the court on a* mere motion, in this action, to- adjudge that an entry — on its face duly made by the clerk of the county on the docket of a judgment nr another action,' that said judgment had been-released — was void for the reason that the release was invalid, or that the entry had been fraudulently made.
¶2The release cannot be attacked, nor the entry avoided, save in a' direct proceeding or suit for that purpose.
¶3Second. I am, however, of the opinion that the second motion should have been granted; although it appears that the attorney for the appellant knew of the existence of the release at the time this action was commenced. ' I do not think that the plaintiff should be precluded, by the laches of his attorney, from setting up in his complaint that the release was for any reason null and void, "or that it was fraudulently made, and I do not think that so much time had elapsed, before the motion was made, as to justify the court in holding that the plaintiff should be barred from showing the invalidity of the release, if it is, in fact, invalid.
¶4The court has the power to allow the amendment which is asked for, and on proper terms it should be granted (Gray agt. Brown, 15 How., p. 556; Code, sec. 113).
¶5Upon payment of all the costs in the action, and disbursements up to the present time, and costs of motion, the plaintiff may have leave to amend his complaint as moved for. On these conditions the second order appealed from should be reversed without costs.
¶6The first order appealed from is affirmed with costs.
¶7Daniels, J., and Davis, P. L, concurred.